Imagine the accused was not Pravin Gordhan

​Imagine the accused was not Pravin Gordhan, but, one Des who was CEO of a large multinational company. Imagine he was friends with a certain Tom, in upper middle management, who also worked for the company and that the two liked to go fishing at the sea. Imagine they dreamt of owning a small cottage at the sea from where they could spend long days fishing. Imagine that they had found the perfect cottage for sale – an urgent sale – for the sort of money that only Tom could obtain if he could get access to his retirement fund. Imagine that Tom was due to retire in two years and stood to suffer a significant penalty if he retired early and also that Tom couldn’t really afford to retire early. Imagine Des makes some enquiries and discovers that he has the discretion to authorise an early retirement and a re-employment – all if justified for operational purposes. He discovers that if he authorises the early retirement, he can also authorise that the company must pay the penalty. Imagine Des thinks: ‘no one can know what I was actually thinking – everyone trusts me implicitly – no one will question me’ – remember – imagine. Now, what if Des and Tom conspire and Des goes ahead? Des misrepresents that he is authorising the early retirement and then the subsequent re-employment for operational purposes. Tom’s pension is paid out, the company pays the penalty, and soon thereafter, Tom is re-employed. Now, imagine Des had confided in his wife, who objects to his now frequent fishing trips. He institutes for divorce and she goes to speak to one Shaun.

In this scenario, assuming it could all be proved, in my view, there could well be a conviction for fraud or theft. It all depends as the brilliant Prof Andrew Paizes (coauthor of the SA Law of Evidence) always wisely reminded me. It all depends on what the evidence is and on what the evidence can show Des was thinking.

Do I believe this applies to Pravin Gordhan? No, but then, I have to admit, I am biased. Nevertheless, I think it’s important that we realise that there is a possible scenario in which even someone of the moral authority of Pravin Gordhan could conceivable have committed the offences charged.

If we recognise this, then we are able to focus on and demand the sort of evidence that is, at least, relevant – both evidence which may incriminate and that which may exculpate.